Frontline UK Employment Law Update Edition 38 2025 - Case Updates

1. Leicester City Council v Parmar [2025] EWCA Civ 952
2. Wainwright v Cennox [2023] EAT 101
3. HMRC v Taylors Services Ltd [2025] EWCA Civ 956
4. BCA Logistics Ltd v Brian Parker and ors [2025] EAT 94

1. Leicester City Council v Parmar [2025] EWCA Civ 952 [LINK]

In this case, the Court of Appeal (“CA”) upheld an Employment Tribunal (“ET”) decision that the Respondent had directly discriminated against the Claimant on the grounds of race.

The Claimant, a British national of Indian origin with many years’ experience as a social worker, was employed by the Respondent as head of service for one of the Respondent’s service areas. The Claimant was investigated by the Respondent as part of a disciplinary process, but was not provided with any details of the allegations against her and ultimately the investigation was discontinued as there was no case to answer. 

The Claimant brought a successful direct race discrimination claim in the ET in relation to the disciplinary investigation, claiming that she had been treated less favourably than white colleagues who had been involved in similar situations. The Claimant argued that she was treated more harshly than two other white colleagues even though they were implicated in more severe failures. Her claim also included allegations that another employee of the Respondent had a clear racially motivated pattern of discriminatory behaviour towards BAME staff. The Employment Appeal Tribunal (“EAT”) dismissed the Respondent’s appeal, and the Respondent appealed to the CA on grounds that the ET had made errors in its use of comparators and its application of the burden of proof.

The CA dismissed the appeal and upheld the ET’s finding of direct race discrimination. The CA agreed that:

1. The EAT was right to characterise the ET’s reliance on comparators as a reliance on evidential, rather than statutory comparators, and that the ET had not made an error in law by not itemising all the similarities and differences between the cases of the comparators and the Claimant.
2. The ET had not treated the Respondent’s failures of disclosure as ‘automatically’ shifting the burden of proof (which would have been an error of law). The evidence was clearly relevant and the ET had taken those failures into account to draw adverse inferences.
3. The EAT had not made an error of law in its consideration of the Respondent’s explanations for its conduct.
4. It was clear from the ET’s judgment as a whole that it had considered the decisions to have three disciplinary investigation meetings amounted to less favourable treatment and that that treatment was because of the Claimant’s race, because it was all part of a baseless investigation.

This case highlights the importance of ensuring consistency in disciplinary procedures. Where employees in comparable situations are treated differently, employers must ensure there is a credible non-discriminatory explanation and the employer is able to justify any differential treatment. The Respondent’s failure to disclose key documents was a key part of the case against it. Although this does not automatically shift the burden of proof, it still allowed the ET to draw adverse inferences of discrimination. It is therefore important for employers to properly document and to retain documentation relating to internal procedures.

2. Wainwright v Cennox [2023] EAT 101 [LINK]

In this case, the Employment Appeal Tribunal (“EAT”) decided that the Employment Tribunal (“ET”) had failed to analyse whether acts of discrimination amounted to fundamental breaches of contract that led to the Claimant’s resignation.

The Claimant was a long-serving employee who was diagnosed with cancer and began a period of sick leave to receive treatment. After returning to work for a brief period, the Claimant commenced another period of sickness absence.

In the Claimant’s absence, and unknown to her at the time, one of the Claimant’s colleagues notified the Respondent that they intended to resign. The colleague was then offered the same role as the Claimant (Head of Installations) on a permanent basis on the assumption there would be enough work for two Heads of Installations. The Claimant only became aware of this through LinkedIn some months later, whilst on sick leave. When she contacted the Respondent, she was inaccurately told that her role would be unaffected. The Respondent also failed to inform the Claimant that the colleague’s new role was permanent.

Following discussions about the Claimant’s return to work, she was provided a new job description and organisation chart, which led the Claimant to believe she had been demoted. She consequently raised a formal grievance, to which the Respondent’s UK Managing Director expressed surprise and disappointment. The Respondent then temporarily removed the Claimant’s access to her work e-mail account after discovering that she had been approached by a customer to potentially recruit her. There was also a delay in progressing the Claimant’s grievance, after which the Claimant resigned and brought various claims in the ET.

The ET dismissed the Claimant’s claims of direct disability discrimination, victimisation, wrongful dismissal and constructive unfair and discriminatory dismissal. It did however find that the Respondent had discriminated against the Claimant because of something arising from her disability, by appointing her colleague to the same rule without her input and by misleading the Claimant that this appointment was temporary. However, the ET concluded that the Claimant’s resignation was not due to these discriminatory acts, rather it was due to dissatisfaction with her job title and status.

The Claimant appealed. The EAT decided that the ET had failed to carry out a structured analysis of considering whether the discriminatory acts amounted to a fundamental breach of contract, as well as whether such breaches materially contributed to the Claimant’s resignation. The EAT emphasised that the breach of contract does not have to be the sole or “effective cause” of an employee’s resignation as long as it “materially contributed” to it.

The case was returned to a fresh ET for reconsideration and the Claimant’s claims for constructive unfair dismissal and discriminatory dismissal were subsequently upheld. Following a remedies judgment, the Claimant was awarded £1.2m in compensation, including an injury to feelings award of £40,000.

This case emphasises that in a constructive dismissal case, the ET should ask whether proven discriminatory actions breached trust and confidence between the employer and employee, before considering whether those breaches materially contributed to the employee’s resignation. It also acts has a reminder to employers to take care in their communications with disabled employees in circumstances where a replacement may be required to manage their workload during their sickness absence.

3. HMRC v Taylors Services Ltd [2025] EWCA Civ 956 [LINK]

In this case, the Court of Appeal (“CA”) ruled that time spent travelling between workers' homes and work sites does not constitute “time work” under the National Minimum Wage Regulations 2015 (the “NMW Regulations”), even when journeys are lengthy and undertaken in employer-provided transport.

The Respondent engaged workers on zero-hour contracts to carry out tasks at poultry farms nationwide. Some of these work locations required a commute of up to four hours each way in minibuses supplied by the Respondent. The workers were not paid for this travel time. As a result, HMRC issued notices of underpayment totalling over £60,000, arguing that the travel time warranted minimum wage payments according to the NMW Regulations.  

The Respondent unsuccessfully challenged this decision in the Employment Tribunal (“ET”), which agreed with HMRC’s conclusion that the travel time should be remunerated as “time work”. However, on appeal, the Employment Appeal Tribunal (“EAT”) disagreed with the ET. It determined that travel time did not constitute “work” under the NMW Regulations, meaning that the workers were not entitled to the minimum wage for their travel time. It noted that during this time, workers remained free to engage in non-work activities such as sleeping, chatting, or even looking for alternative employment online. 

HMRC appealed to the CA, which upheld the EAT’s decision and dismissed the appeal. Applying Supreme Court guidance from Royal Mencap Society v Tomlinson-Blake regarding the meaning of “time work” under the NMW Regulations, the CA distinguished between “work” as an ordinary English term and “time work” as a specific regulatory concept. As such, on interpretation of the phrase “time work” in the context of the NMW Regulations, the CA decided that the travel time was excluded on the basis that (i) it did not represent a period when workers would otherwise be working, and (ii) the journeys fell within the specific regulatory exclusion for travel between workers’ homes and work locations. The CA did, however, acknowledge that if the minibus travel was from the Respondent employer’s premises to another assignment location rather than from the worker’s home, this would result in the travel time qualifying as “time work” which attracted the minimum wage entitlement. It also emphasised that addressing any legislative gaps was Parliament’s responsibility, potentially to be supported by Low Pay Commission recommendations, rather than judicial intervention.

This is a helpful decision that confirms that travel time between a worker's home and their assigned place of work is unlikely to constitute time work for national minimum wage purposes, even where journeys are extensive (in this case up to eight hours travel each day) and the employer provides transportation. However, there are circumstances where travel time may count as “time work” for national minimum wage purposes (e.g. where travel takes place during hours when the worker would otherwise be working).  Employers must remain vigilant regarding compliance given the complexity of the NMW Regulations and the risk of HMRC enforcement action, government 'naming and shaming', and substantial penalties. 

4. BCA Logistics Ltd v Brian Parker and ors [2025] EAT 94 [LINK]

In this case, the Employment Appeal Tribunal (“EAT”) upheld an Employment Tribunal’s (“ET”) decision that drivers engaged by the Respondent (a vehicle delivery and inspection company) were workers as opposed to self-employed contractors. The case centred on whether a substitution clause contained in the drivers’ contracts was genuine or merely a device to disguise the reality of the situation. In arriving at its decision, the EAT discussed the evidence that the ET can take into account in making such a determination. 

The Claimants were drivers engaged by the Respondent on a self-employed basis to undertake vehicle collection, inspection, delivery and transport services. The Claimants worked under standard-form contracts that included a substitution clause, purportedly allowing them to send substitutes to perform their duties.

The Claimants challenged their self-employed classification, arguing they should be recognised as workers entitled to working time protections and national minimum wage rights. Central to their claim was the assertion that the substitution clause was not genuine and therefore did not effectively remove the personal service obligation that is essential for worker status. 

The ET found in favour of the Claimants, stating that the substitution clause was an “unrealistic possibility that was not intended to be operated in practice, and it therefore did not form part of the true agreement”. The EAT agreed and commented that “if the provision of a substitute is an "unrealistic possibility", then the written term can be disregarded as forming no part of the true contract.”

The EAT also highlighted several key factors that the ET had focused on that supported the finding that the substitution clause was not genuine:

• the Respondent had no plan or process in place to deal with the practical problems that would arise if drivers had used a substitute (such as insurance, trade plates, data protection and equipment);
• the Respondent did not provide any training or guidance on how to engage or use a substitute, nor were there any procedures or processes in place for this;
• the Respondent did not offer any training to substitutes (despite the fact that the Claimants were required to undergo a 4-day training course);
• it was unrealistic for substitutes with little to no training to do inspections or that the Respondent or its customers would be content for a possibly untrained substitute to do this work;
• it was unrealistic to suggest the Respondent would risk handing over its customers’ vehicles to someone they do not know; and
• in over 25 years, no driver had ever made use of a substitute.

The lead Claimants had also given evidence that they did not think it would be practicable to use a substitute. 

This case serves as a reminder that including a right of substitution in the contract is not enough to establish that a service provider is genuinely self-employed.  To be effective, it must be practicable for such a right to be exercised. It was not in dispute in this case that an unfettered right to substitution would prevent a contractor from being classified as a worker. However, if the absence of conditions on the right to substitution means that such a right is an “unrealistic possibility” and therefore unlikely to be genuine, employers should assess whether the clause needs to specify that any substitute must be properly qualified and, where necessary, trained to carry out the job at hand. However, this will need to be carefully balanced against the fact that the more conditions are placed on a substitution right, the more likely it is to be challenged as not giving the individual a genuinely free choice of substitute, which of itself could increase the likelihood of the individuals concerned being found to be workers.